PEOPLE v. GARZA

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Following a jury trial, defendant was convicted
of two counts of first-degree criminal sexual conduct, MCL
750.520b; MSA 28.788(2), assault with intent to do great bodily
harm, MCL 750.84; MSA 28.279, kidnapping, MCL 750.349; MSA
28.581, and unlawfully driving away an automobile, MCL 750.413;
MSA 28.645. Defendant was sentenced as an habitual offender,
second offense, MCL 769.10; MSA 28.1082, to life imprisonment for
one CSC conviction, fifty to seventy-five years’
imprisonment for the other CSC conviction, ten to fifteen
years’ imprisonment for the assault conviction, forty to
sixty years’ imprisonment for the kidnapping conviction, and
five to seven years’ imprisonment for the UDAA conviction.
Defendant appeals as of right. We affirm.

On August 23, 1996, the complainant was
celebrating a friend’s birthday in South Haven. She parked
her car in a lot across the street from where she and her friends
planned to spend the night. She walked to a restaurant and had
dinner and drinks with her friends before walking to a nightclub.
At the nightclub, she met defendant. Twice that evening,
defendant tried to kiss the complainant and had his arms on her.
After leaving the nightclub at 2:00 a.m., she walked with her
friends to the hotel where they planned to spend the night. A
number of individuals from the nightclub, including defendant,
came to the room. According to the complainant, she went to her
car to retrieve her bags. As she was opening the rear
driver’s side door to get her bags, she noticed that
defendant was behind her. Defendant grabbed her and pushed her
into the back seat of the car.

The complainant testified that defendant began
kissing and fondling her and told her that they were "going
to have a good time." Defendant locked all of the car doors
and told the complainant that they were going to "do
it." When the complainant resisted, defendant began punching
her in the face and in the stomach with his fists. Defendant
removed the complainant’s clothing and sexually assaulted
her. Defendant then attempted to strangle the complainant, and
she passed out. She awakened to find defendant putting her in the
trunk of her car through the fold-down back seat.

Defendant then drove for a long time before
stopping the car and pulling the complainant from the trunk.
Defendant told the victim that he was carrying her into the
hospital. Instead, he took her inside a home, laid her on a
couch, and sexually assaulted her. The complainant again
resisted, and defendant told her to shut up. Defendant then told
the complainant that she was "a mess" and took her into
the shower with him so she could clean off. When they got out of
the shower, defendant again sexually assaulted the complainant.

The complainant asked to leave, but defendant
put his arm on top of her and told her to go to sleep. The
complainant tried to move to get up, and defendant again sexually
assaulted her. After the last incident, the complainant was able
to get up and get dressed. Defendant then taped her mouth, bound
her hands and feet together, put wire around her neck, and put a
blanket over her head. Defendant then struck her over the head,
on the elbow, and on her back with what "felt like a
bat." She passed out, and awakened when defendant lifted her
up to put her into a hall closet.

The complainant eventually worked herself free
of the tape and wire around her mouth and hands and was able to
"hop" out the door of the apartment and scream for
help.

Defendant testified that he met the complainant
at a nightclub and that they danced and drank together all night
until they left the bar. Defendant did not deny having sex with
the complainant, but rather claimed that it was consensual.

Defendant first argues that the trial court
abused its discretion in denying his motion for a new trial, a
motion based in part on a claim of ineffective assistance of
counsel. Defendant contends that his attorney failed to call
Vincent Duncan as a witness to corroborate defendant ‘s
testimony that he and the complainant were affectionate in the
nightclub and embracing romantically in the parking lot.

To establish a claim of ineffective assistance
of counsel, a defendant must show that his counsel’s
performance fell below an objective standard of reasonableness
and that counsel’s representation prejudiced him so as to
deprive him of a fair trial. People v Williams, 240 Mich
App 316, 331; 614 NW2d 647 (2000). A defendant must show that,
but for the error, the result of the proceedings would have been
different and that the proceedings were fundamentally unfair or
unreliable. Id. Furthermore, this Court presumes that a
defendant received effective assistance of counsel and the
defendant bears a heavy burden to prove otherwise. Id. Decisions
regarding what evidence to present and whether to call or
question witnesses are presumed to be matters of trial strategy. People
v Mitchell, 454 Mich 145, 163; 560 NW2d 600 (1997). This
Court will not substitute its judgment for that of counsel
regarding matters of trial strategy, nor will it assess
counsel’s competence with the benefit of hindsight. People
v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987).

Here, defense counsel testified that he did not
call Duncan to testify at trial because Duncan was too drunk
during the course of events to remember anything of significance.
The trial court found that defense counsel’s decision not to
call Duncan was trial strategy rather than inadvertent. Further,
the failure to call Duncan did not affect the outcome of the
trial. Duncan did not witness any of the alleged events for which
defendant was convicted. Duncan last saw defendant with the
complainant in South Haven before any of the alleged events
transpired. Thus, even if the jury believed Duncan’s
proposed testimony that defendant and the complainant were
embracing outside her car, the jury could still have found that
defendant beat and twice sexually assaulted the complainant in
Kalamazoo and drove off with her car. The record does not
demonstrate that defense counsel’s performance was
deficient.

Next, defendant asserts that the sentences
imposed were disproportionate. Sentencing issues are reviewed by
this Court for an abuse of discretion by the trial court. People
v Coles, 417 Mich 523, 537; 339 NW2d 440 (1983); People v
Rick (On Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).
A trial court abuses it discretion when it imposes a sentence
that is not proportional to the seriousness of the circumstances
surrounding the offense and the offender. People v
Merriweather, 447 Mich 799, 806; 527 NW2d 460 (1994); People
v Milbourn, 435 Mich 630, 635-636, 654; 461 NW2d 1 (1990).

Defendant contends that the sentence is not
proportionate to the offender because he is only twenty-two years
old and capable of rehabilitation and because he had never before
committed these types of crimes. However, the record does not
support defendant’s contentions. The presentence information
report indicates that defendant has a history of violence toward
women. In May 1992, defendant was convicted of malicious
destruction of property over one hundred dollars when he threw a
beer bottle and broke his ex-girlfriend’s car windshield
during a jealous drunken rage. The report indicates that his
ex-girlfriend had a restraining order against him. In June 1992,
defendant was charged with making threatening telephone calls to
the same ex-girlfriend. In December 1994, defendant was charged
with malicious destruction of property over one hundred dollars
for slashing his ex-wife’s tires. At the time, the ex-wife
had a restraining order against defendant. Defendant’s past
record indicates that, despite his involvement with the judicial
system, he has continued to engage in abusive behavior toward
women. Indeed, the present crimes were more violent and severe
than any previous offenses, an indication that defendant lacks
rehabilitative potential. On the basis of the facts of this case,
we are not persuaded that defendant’s sentence violates the
principle of proportionality. Consistent with the Supreme
Court’s opinion in Merriweather, supra, we find no
abuse of discretion in the sentencing court’s goal of
keeping defendant away from society for the rest of his life.
Accordingly, we affirm defendant’s sentence.

In an issue of first impression, defendant also
contends that the sentencing court’s recommendation on the
Judgment of Sentence that defendant not be granted parole
violates MCL 791.234(6)(b); MSA 28.2304(6)(b), the so-called
"lifer law," which provides that defendants sentenced
to paroleable terms are subject to the jurisdiction of the parole
board and may be released on parole subject to certain
conditions. Specifically, § 34(6) provides, in pertinent
part:

A parole shall not be granted a
prisoner so sentenced until after a public hearing . . .
. Notice of the public hearing shall be given to the
sentencing judge, or the judge’s successor in
office, and parole shall not be granted if the sentencing
judge, or the judge’s successor in office, files
written objections to the granting of parole within 30
days of receipt of the notice of hearing. The written
objections shall be made part of the prisoner’s
file.

The sentencing judge explained his reasoning in
placing the "no parole" recommendation in the Judgment
of Sentence:

I want this to be very clear, no person
sentenced to life in prison may be paroled, under current
law, without permission of the sentencing judge. I,
frankly, don’t expect to be around when that
permission is sought. But, I want this record to be very
clear, that my predecessor [sic] should take full measure
of his or her time to review this record. And, it is my
strong and firm recommendation that you shall never be
paroled, under any circumstances whatsoever.

Defendant asserts that the sentencing
judge’s comment regarding "no parole" in the
judgment of sentence contradicts the procedure set forth in
§ 34(6) and renders the "within 30 days receipt of the
notice hearing" language meaningless. We disagree. The plain
language of § (34)(6) specifically refers to the
"filing of written objections to the granting of parole
within 30 days of receipt of the notice of hearing." A
sentencing judge’s written comment in a judgment of
sentence, made at the time of sentencing, clearly is not
equivalent to the filing of "written objections . . . within
30 days of receipt of the notice of hearing." Hence,
notwithstanding the inclusion of such a recommendation in the
judgment of sentence, a sentencing judge[1] who wants
to object to a grant of parole is required to file written
objections in accordance with § (34)(6). Accordingly, we
conclude that the sentencing judge’s comment in the judgment
of sentence does not violate § (34)(6).